USA v. Haymon et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America,
Plaintiff,
vs.
Maurice Haymon Jr.,
Defendant.
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Case No. 3:24-cr-58
REPORT AND RECOMMENDATION
Maurice Haymon Jr. is charged with involvement in drug and money laundering
conspiracies and possession with intent to distribute fentanyl. (Doc. 4). Haymon moves
for suppression of all evidence obtained (1) as a result of a November 7, 2023 state court
order for the installation and use of pen register and trap and trace devices, including
Global Positions System (GPS) technology, related to his cell phone (collectively, cell
phone GPS); (2) as a result of a November 8, 2023 state court warrant authorizing
installation of a GPS device on the exterior of a 2014 Dodge Durango Haymon drove
(Durango GPS); and (3) following a November 24, 2023 search of the Durango.
(Doc. 315). Haymon argues probable cause did not support issuance of the tracking
warrants and probable cause did not support the search of the Durango. (Doc. 370). The
United States opposes the motion, contending probable cause supported issuance of
both tracking warrants and the search of the Durango. (Doc. 365).
The court held an evidentiary hearing on August 13, 2025. The United States
presented testimony of two law enforcement officers—North Dakota Highway Patrol
(NDHP) Trooper Gabriel Irvis, who conducted the November 24 traffic stop, and Task
Force Officer (TFO) Kyle Hinrichs who is the case agent. Haymon testified and called no
other witnesses.
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The parties agreed to various exhibits being received into evidence: (1) a January
19, 2016 Cass County Drug Task Force (CCDTF) report; (2) Registers of Actions in two
cases captioned State of North Dakota vs. Kelly Rae Dionne; (3) a November 3, 2023
NDHP report of Trooper Jamey T. Jahner; (4) a November 24, 2023 NDHP report of
Trooper Irvis; (5) Trooper Irvis’ November 24 body camera video; (6) NDHP Trooper
Matthew R. Denault’s November 24 squad car video; (7) the November 7, 2023 cell
phone GPS warrant at issue and TFO Hinrichs’ application for that warrant; (8) the
November 8, 2023 Durango GPS warrant at issue and TFO Hinrichs’ application for that
warrant; (9) TFO Hinrichs’ October 30, 2023 application for a tracking warrant for a
Ford F-150 with Texas license plates; (10) a November 24, 2023 CCDTF report by TFO
Hinrichs; and (11) A November 25, 2023 Arrest Synopsis by TFO Hinrichs.
Summary of Recommendation
Considering the information in TFO Hinrichs’ declaration in support of his
application for the cell phone GPS warrant, the district judge should conclude probable
cause supported issuance of the cell phone GPS warrant. If the district judge concludes
probable cause did not support issuance of that warrant, the district judge should
conclude the good-faith exception precludes suppression of the evidence obtained
through that warrant. Additionally, considering the information in TFO Hinrichs’
declaration in support of his application for the Durango GPS warrant, the district judge
should conclude probable cause supported issuance of that warrant. Finally, because
officers smelled marijuana emanating from the Durango after it was stopped for traffic
violations, the district court judge should conclude probable cause supported search of
the Durango under the automobile exception to the Fourth Amendment warrant
requirement. The motion to suppress should therefore be denied.
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Summary of Hearing Testimony and Record Evidence
1. 	Investigation Preceding Traffic Stop
At the time of the events relevant to this case, TFO Hinrichs was employed by the
West Fargo, North Dakota, Police Department (WFPD) and assigned to the CCDTF.
TFO Hinrichs testified a confidential informant (CI-1) contacted him on August 16,
2023, and told him “an individual named Blue, who was later identified as Nathaniel
Showers, . . . was selling fentanyl-laced M30 pills out of Reese’s apartment at 1544 East
Gateway Circle, Number 105, in Fargo, [North Dakota]” and Reese was also selling M30
fentanyl pills. Tr. 73-74. 1 TFO Hinrichs recognized the name “Reese” from a 2016 drug
investigation, id. at 74, and knew “Reese” to be Haymon, (Doc. 315-1, p. 2). Three
January 2016 CCDTF reports describe a confidential informant purchasing heroin from
Haymon. (Doc. 321-1).
After getting the information from CI-1, TFO Hinrichs contacted management
personnel for the East Gateway Circle address, who told TFO Hinrichs that Haymon was
the only person on the lease for that apartment and they had received “numerous
complaints of constant come-and-go, short-term foot traffic from Mr. Haymon’s
apartment and garage.” Tr. 75-76. TFO Hinrichs contacted management personnel at
the address a second time on September 13, 2023, and was told there had been
continued complaints of constant come-and-go traffic. Id. at 76.
TFO Hinrichs, together with TFO Kyle Seehusen, met with a different CI (CI-2)
on September 25, 2023. CI-2 told the TFOs someone named Reese was selling fentanyl-
laced M30 pills, Reese was dating a Native American female named Kelly, and Reese
1 The transcript of the evidentiary hearing is filed at Docket 353.
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and Kelly were traveling to the Minneapolis-St. Paul, Minnesota, area to obtain the pills
and bring them to Fargo. Based on descriptors CI-2 provided, TFO Hinrichs suspected
the Native American female was Kelly Dionne, who he had investigated and who had
been convicted of drug trafficking in 2021. 2 (Doc. 321-2). TFO Hinrichs then showed a
photo of Dionne to CI-2, who confirmed Dionne was the person CI-2 described as being
in a relationship with Haymon, and CI-2 gave the TFOs the phone number they used to
contact Haymon to purchase narcotics—561-897-7542. TFO Hinrichs described cell
phones as “the main way drug dealers and drug users communicate to get what they
need for narcotics.” Tr. 77-80.
CI-2 did a controlled purchase of M30 fentanyl pills at Haymon’s East Gateway
Circle address “[r]ight after” providing information to the TFOs, where CI-2 purchased
the pills from the girlfriend of Lewis George, a relative of Haymon who was residing in
Haymon’s apartment. Id. at 80-81.
Using law enforcement resources, TFO Hinrichs identified Dionne’s address—
2211 17th Street South, Apartment 13, Fargo, and contacted management personnel at
that building to confirm Dionne was on the lease for that apartment. He testified
management personnel told him they had received numerous complaints of come-and-
go, short-term foot traffic at Dionne’s apartment, which TFO Hinrichs considered
indicative of drug trafficking activity. TFO Hinrichs conducted surveillance at Dionne’s
address, and testified he observed an interaction between Dionne and another person
that he believed to have been a drug transaction. Id. at 82-83.
2 Kelly Dionne is a co-defendant who, like Haymon, is charged with involvement
in drug and money laundering conspiracies.
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On October 13, 2023, a WFPD officer contacted TFO Hinrichs, and reported he
had arrested an individual on narcotics-related charges who had provided names of
three individuals—Haymon, Dionne, and George—who were selling methamphetamine
and fentanyl-laced M30 pills in Fargo. The individual desired to cooperate with law
enforcement’s investigation. The cooperating criminal defendant (CCD-1) said Haymon,
Dionne, and George traveled to Minneapolis-St. Paul to obtain M30 fentanyl pills and
bring them to Fargo to sell, and Dionne sold the pills and had pounds of
methamphetamine. Id. at 83-84.
On October 24, 2023, TFO Hinrichs learned WFPD officers had arrested another
individual (CCD-2) who wanted to provide information about four individuals who
traveled to Minneapolis-St. Paul twice a week to obtain methamphetamine, fentanyl
powder, and M30 fentanyl pills to sell in Fargo. TFO Hinrichs was familiar with CCD-2
from a prior investigation during which the CCD-2 had provided reliable information.
CDD-2 reported having been at a West Fargo address on October 23, 2023, where
Dionne had come with three African-American males—Haymon, “Blue,” and “Chief.”
“Blue” was later identified as Nathaniel Showers, but TFO Hinrichs testified he had not
yet identified “Chief.” Id. at 85-86. CCD-2 reported Dionne and the three males “pulled
out various narcotics, to include fentanyl powder, methamphetamine, fentanyl M30
pills. They weighed the drugs on scales and - - and did stuff like that.” Id. at 86. CCD-2
also said Dionne drove multiple vehicles to avoid law enforcement detection and had
recently been involved in a vehicle crash. TFO Hinrichs confirmed the recent crash
where Dionne had fled from the scene and left two cellular phones in the vehicle. CCD-2
provided a phone number for Dionne—the same number CI-2 had given the TFOs on
September 25—to contact Haymon to arrange to purchase narcotics. Id. at 84-87, 120.
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CCD-2 reported Haymon was in a relationship with an African-American female
named Brittany, who lived near Essentia Hospital on 32nd Avenue South in Fargo. On
October 25, 2023, TFO Hinrichs reviewed Haymon’s open Facebook profile and found a
Facebook friend named Brittany Sismaryclarence Shanese, who he identified as Brittany
Holman.3 Using law enforcement resources, he identified Holman’s address as 2701
32nd Avenue South, Apartment 101, in Fargo, near the location CCD-2 had reported.
TFO Hinrichs was familiar with Holman through investigation of someone with whom
she associated. Id. at 88-89.
Also on October 25, TFO Hinrichs reviewed law enforcement databases and
learned Haymon had been stopped in a gray Ford F-150 truck with Texas license plates
about a week earlier. TFO Hinrichs, on October 27, 2023, went to Holman’s 32nd
Avenue South address, saw the F-150 in the parking lot, but saw no one approach the
vehicle. Later the same day, he went to Haymon’s East Gateway Circle address, where he
saw Haymon enter the F-150 and leave the area. Id. at 90.
2. 	F-150 Tracking Warrant
On October 27, 2023,4 TFO Hinrichs and TFO Seehusen spoke with CI-2, who
confirmed Haymon’s phone number and reported Haymon was in possession of
approximately 1,000 fentanyl pills at the East Gateway Circle address and Haymon was
3 In the evidence, Brittany Holman is sometimes referred to as Haymon’s
girlfriend and sometimes referred to as Haymon’s wife. Haymon testified he and
Holman were married on November 21 or 22, 2023. Tr. 160.
4 Although the prosecutor’s question referred to October 27, 2022, from the
context of the testimony, the court assumes that was an error and the reference should
have been to 2023 rather than 2022.
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driving “that truck.” 5 Id. at 92. On October 30, 2023, TFO Hinrichs applied for and was
granted a state court GPS warrant allowing placement of a tracking device on the F-150.
In his declaration supporting the warrant application, TFO Hinrichs referenced
Haymon having been contacted by the Fargo Police Department (FPD) on October 15,
2023, when driving the F-150. (Doc. 315-5, p. 5). Haymon testified he was stopped by an
unmarked FPD vehicle with flashing lights on October 15 when he was driving the F-150
and the stop concerned an allegation he had bumped into a car in his wife’s parking lot.
Haymon testified he had not bumped into any car in that parking lot. Haymon further
testified he felt he “was being tracked right then and there.” Tr. 156-58. There is no
other evidence in the record concerning the October 15 traffic stop.
TFO Hinrichs placed the tracking device on the F-150 on October 31, 2023, in the
parking lot of Holman’s 32nd Avenue South address. The next two days, November 1
and 2, 2023, TFO Hinrichs surveilled Haymon, who was driving the F-150. TFO
Hinrichs testified he observed Haymon “meet with multiple individuals in multiple
parking lots and do hand-to-hand transactions” that TFO Hinrichs believed were drug
transactions. Id. at 93. TFO Hinrichs identified one of the individuals with whom
Haymon met as James Perkins, who TFO Hinrichs described as a “known lower-level
M30 fentanyl dealer in Fargo.” Id. at 92-93.
TFO Hinrichs testified Drug Enforcement Administration (DEA) TFO Paul
Cichos contacted him either November 2 or 3, 2023, and told hm he had arrested
Nathaniel Showers, also known as “Blue,” with a large amount of fentanyl powder that
5 TFO Hinrichs’s declarations in support of his warrant applications state TFO
Seehusen spoke with CI-2 on October 27 and CI-2 had provided that information. (Doc.
315-1, p. 6; 315-3, p. 6; Doc. 315-5, p. 5).
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he had obtained from Haymon. Showers also reported Haymon’s phone number—the
same 7542 number two others had reported as associated with Haymon. Id. at 93-94.
On November 6, 2023, a third informant (CI-3) contacted TFO Bret Witte and
reported having met with Haymon and Perkins at a Fargo address, where Haymon told
CI-3 he was out of narcotics but planned to travel to Rochester, Minnesota, the next day
to obtain methamphetamine, cocaine, and fentanyl to bring to Fargo. Id. at 94. But, by
that date, TFO Hinrichs was aware Haymon was no longer driving the F-150 and the F-
150 was then at the registered owner’s location. TFO Seehusen contacted CI-2 on
November 7, and CI-2 confirmed Haymon’s phone number was still the 7542 number. 6
Id. at 94-95.
Since he believed Haymon was no longer driving the F-150, on November 7,
2025, TFO Hinrichs applied for and was granted a state court “ping” warrant for the
7542 phone number (the cell phone GPS). In his declaration supporting the warrant
application, TFO Hinrichs described the 7542 phone number as attributed to Haymon,
(Doc. 315-1), and on cross-examination he acknowledged his declaration included no
specific evidence Haymon was in possession of a phone with that number while
distributing or picking up drugs, Tr. 124. He further testified the individuals who gave
him the 7542 phone number gave him “the phone number to their drug dealer’s phone,
which was Mr. Haymon.” 7 Id. at 141.
6 Information included in TFO Hinrichs’s declarations in support of his cellphone
GPS and Durango GPS warrant applications identified CI-1 as the person who TFO
Seehusen contacted on November 7. (See Doc. 315-1, p. 7; Doc. 315-3, p. 7).
7 The court notes TFO Hinrichs’ declarations describe only CI-2 as having
provided Haymon’s phone number.
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Verizon activated the cell phone GPS shortly after 1:00 p.m. on November 7. Just
before 2:00 p.m. that same day, TFO Hinrichs learned the phone was traveling east on
Interstate 94 toward Minneapolis-St. Paul and late the night of November 7, the cell
phone GPS showed the phone traveling from Minneapolis-St. Paul to Fargo. Id. at 95-
96.
3. 	November 7, 2023 Traffic Stop
The night of November 7, TFO Hinrichs contacted the “task force group,” 8
seeking law enforcement officers who might be available to help locate Haymon and
potentially conduct a traffic stop of the vehicle he was driving. Trooper Irvis responded
to TFO Hinrichs’ request and testified TFO Hinrichs advised the team that Haymon was
the subject of a narcotics investigation and that TFO Hinrichs was getting cell phone
pings but had not identified a vehicle associated with Haymon. Id. at 17-18. Trooper
Irvis testified that, on November 7, if TFO Hinrichs was able to identify a vehicle
Haymon was driving, Trooper Irvis planned to attempt to “find [his] own reasonable
suspicion to conduct a traffic stop, conduct a traffic stop, and go from there.” Id. at 19.
Law enforcement did not make contact with Haymon on November 7.
8 Trooper Irvis referred to TFO Hinrichs having contacted the NDHP interdiction
team. The court assumes Trooper Irvis was part of the “task force group” to which TFO
Hinrichs referred.
Trooper Irvis has been part of the NDHP Criminal Interdiction Team since 2021.
He described the work of that team as “look[ing] for narcotics and the criminal element
that’s traveling our highways,” both through traffic stops when there is no knowledge of
any criminal activity prior to the stop and “whisper stops,” where a law enforcement
agency has some knowledge of criminal activity involving a certain vehicle or certain
suspect and NDHP troopers “stop the car and kind of make it look random,” so as not to
jeopardize an investigation. Tr. 14-15.
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But Trooper Irvis queried the NDHP database and found Trooper Jahner had
stopped Haymon for speeding on I-94 in Fargo on November 3, 2025, driving a Dodge
Durango with dealership plates. Id. A November 3 NDHP report of the traffic stop
included Haymon’s name and the 7542 phone number. (Doc. 321-4). Trooper Jahner
reported he observed a baggie that appeared to contain marijuana on top of the center
console of the Durango and that he smelled the odor of marijuana coming from the
vehicle. Id. at 2. Trooper Jahner conducted a probable cause search of the Durango,
lifted the elbow rest pad of the center console, and observed a “tied-shut plastic baggie
with a fine white powder inside.” Id. Haymon testified the officer asked him to get out of
the Durango and come to the patrol vehicle, and testified, “I think he said he smelled
marijuana or so. I don’t know. But I know for a fact he didn’t smell any marijuana.” Tr.
160. He testified he did not smoke marijuana in a vehicle because he knew that could
lead to a search of a vehicle. Id. at 160-61.
Trooper Jahner reported his review of video from inside his patrol vehicle while
Haymon was alone in the back seat revealed Haymon saying, “They gonna find this
cocaine that’s in there” to a person with whom he was speaking on his cell phone. (Doc.
321-4, p. 2). Trooper Jahner issued citations for possession of marijuana, possession of
heroin,9 speeding, and driving without a license and released Haymon. Id. at 4-7. On
cross-examination, Haymon acknowledged he had marijuana and cocaine in the
Durango at the time of the November 3 traffic stop. Tr. 174-75. Haymon did not have a
driver’s license, and Trooper Jahner reported Haymon’s girlfriend and another
individual came to take the Durango. On November 8, 2023, Trooper Irvis provided a
9 Trooper Irvis testified the controlled substance was actually believed to be
cocaine rather than heroin. Tr. 22.
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copy of Trooper Jahner’s November 3 report to TFO Hinrichs, along with screenshots
from Trooper Jahner’s dash camera video. Id. at 21, 98.
TFO Hinrichs continued to monitor the location of the 7542 cell phone. Early the
morning of November 8, 2023, he learned the phone was in the area of 2701 32nd
Avenue South, the location previously identified as Holman’s address. TFO Hinrichs
testified he drove through the parking lot at that address and saw a dark-colored Dodge
Durango with paper license plates parked in the parking lot—the same vehicle shown in
the screenshots from the November 3 traffic stop of Haymon. Id. at 100. Although every
other vehicle in the parking lot was dew-covered, TFO Hinrichs noticed the Durango
was dry, which lead him to believe the Durango had been driven recently. Id. Later, on
November 8, TFO Hinrichs and DEA TFO David Todd observed Haymon, at the East
Gateway Circle address, exit the apartment complex, get into the Durango, and leave the
area. Id. at 100-01.
4. 	Durango GPS Tracker
On November 8, TFO Hinrichs applied for and received a state court GPS
tracking warrant for the Durango. (Doc. 315-3). On cross-examination, he acknowledged
his declaration in support of that warrant application referenced Haymon having
recently been stopped by the NDHP driving the Durango but gave no detail about the
recent traffic stop. Tr. 127. TFO Hinrichs also acknowledged the declaration included no
“observations or proof that this Durango was being used to traffic illegal drugs.” Id. at
129-30.
TFO Hinrichs placed the GPS tracking device on the Durango the morning of
November 9, 2023, while it was in the parking lot of Holman’s 32nd Avenue South
address and began to conduct surveillance on the Durango. Id. at 102. While surveilling
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the Durango on November 14, 2023, TFO Hinrichs saw it parked next to a gold Chrysler
300 in a shopping mall parking lot. Holman was the driver of and Haymon was a front
seat passenger in the Durango. TFO Hinrichs saw Holman exit the Durango and go to
the driver’s side window of the Chrysler 300 and saw a “short hand-to-hand
transaction.” Id. at 103. He followed the Chrysler 300 north on Interstate 29 toward
Grand Forks, North Dakota, drove past the Chrysler 300, and recognized the driver as
Cortez Rainey, who TFO Hinrichs recognized as a known M30 fentanyl pill dealer from
multiple prior encounters with him. Id. at. 103. Because he believed he had seen a drug
transaction between Holman and Rainey, TFO Hinrichs contacted Grand Forks task
force officers, who stopped and searched the Chrysler 300 and found fentanyl
paraphernalia in the vehicle. TFO Hinrichs testified Rainey had told law enforcement
officers who stopped the Chrysler 300 that he had been in Fargo to meet with “a
Brittany.” Id. at 104.
Through monitoring the GPS tracker on the Durango and the cell phone GPS,
TFO Hinrichs learned the Durango left Fargo and was en route to Minneapolis-St. Paul
on November 23, 2023, and learned the vehicle was on the way back from Minneapolis-
St. Paul to Fargo the evening of November 24, 2023. TFO Hinrichs then contacted
Trooper Irvis and asked him to assist in surveilling Haymon. Id. at 105-06.
5. 	November 24, 2023 Traffic Stop
When TFO Hinrichs contacted Trooper Irvis on November 24, TFO Hinrichs
relayed a plan that Trooper Irvis would find a valid reason to make a traffic stop of the
Durango and “see what plays out during the traffic stop.” Tr. 23, 107. Trooper Irvis
drove to and “sat on the interstate just into North Dakota.” Id. at 25. NDHP Sergeant
Denault came to the same location at Trooper Irvis’ request. (Doc. 321-5). TFO Hinrichs
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“went out into the Minnesota side to try to get eyes on the vehicle” and confirm Haymon
was driving the vehicle. Tr. 25.
TFO Hinrichs located the Durango on I-94 in Minnesota shortly before 11:00
p.m., observed the vehicle’s side windows were “heavily tinted,” observed the Durango’s
driver matched a description of Haymon, and followed the vehicle into Fargo. Id. at 107-
08. TFO Hinrichs communicated with Trooper Irvis via radio and advised he had
located the Durango and saw “a large male with dreadlocks” in the vehicle. Id. at 25.
Trooper Irvis located the Durango, which a radar device indicated was driving 58 miles
per hour in a 55 mile per hour zone, and observed “extremely dark tint” on the driver
and passenger windows that violated North Dakota law. Id. at 26, 108.
Trooper Irvis initiated a stop of the Durango on I-94 near the 25th Street Exit for
speeding and window tint violations. 10 He testified he approached the Durango on the
passenger side, was immediately met with the odor of burnt marijuana, and
acknowledged on cross-examination that he knew within a minute of approaching the
vehicle that he was going to conduct a search. Id. at 47, 67. Trooper Irvis informed
Haymon of the reason for the stop, told him he would issue “a couple warnings,” but did
not tell him about the odor of burnt marijuana at that time because of officer safety
concerns. Id. at 27-28, 46. There is no evidence any other law enforcement officer
detected the odor of marijuana in the Durango prior to the search. Id. at 43-44. Haymon
told Trooper Irvis he did not have a driver’s license, so Trooper Irvis would not have
10 Trooper Irvis testified the stop was on eastbound I-94, Tr. 27, but his report
stated the stop was on westbound I-94, (Doc. 321-5, p. 4). Driving from Minnesota into
North Dakota would have been on westbound I-94.
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allowed Haymon to drive the Durango away from the traffic stop regardless of whether
the vehicle was searched. Id. at 47.
In preparation for bringing Haymon into his patrol vehicle, Trooper Irvis did a
pat-down search, during which he felt what he thought was a “wad of cash” in Haymon’s
right front pants pocket. Id. at 31. When he asked Haymon about it, Haymon confirmed
the object in his pants pocket was money and said it was “from the casino.” Id. at 31-32,
38, 175.
Trooper Irvis brought Haymon to the front seat of his patrol vehicle, telling
Haymon he was going to get some information from him and “then we’ll get you out of
here.” Id. at 50; Body Camera Video at 1:00-2:30.11 When he came to the patrol vehicle,
Haymon was using a cell phone and speaking with a woman on what Trooper Irvis
believed to be a FaceTime application. Tr. 29. Trooper Irvis later instructed Haymon to
hang up the phone. Trooper Irvis testified he heard the person with whom Haymon was
speaking talk about needing to take a child to the hospital and the Durango being the
only mode of transportation available to do that. Id. at 32-33.
Haymon confirmed to Trooper Irvis everything in the Durango was his, though
the vehicle belonged to Holman. Id. at 34. When asked about his route of travel,
Haymon told Trooper Irvis he was coming from a casino in Mahnomen, Minnesota. Id.
at 33. That statement contradicted GPS data showing Haymon traveling to North
Dakota from Minneapolis-St. Paul, not from Mahnomen. Id.
Trooper Irvis testified he had been trained to recognize the odor of burning
marijuana, had seized hundreds of pounds of it, and was very familiar with its odor and
11 The videos are conventionally filed. (Doc. 322).
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appearance. Id. at 16. Based on his detection of the odor of marijuana, Trooper Irvis
believed there was probable cause to search the Durango. But he testified he understood
TFO Hinrichs did not want him to do a search if there was an “off chance” there was not
a sizeable amount of narcotics in the vehicle, which could jeopardize TFO Hinrichs’
investigation. Id. at 35.
About twelve minutes after initiating the traffic stop, Trooper Irvis exited his
patrol vehicle, walked to the passenger side to handcuff Haymon, and told Haymon he
had detected the odor of marijuana from the Durango. Id. at 45; Body Camera Video at
12:15. On cross-examination, Trooper Irvis stated he did not advise Haymon he had
detected the marijuana odor sooner, did not handcuff him sooner, and “took his time”
questioning Haymon because he was “[l]ikely not going to get any information from him
with handcuffs on.” Tr. 53-54. Trooper Irvis asked Haymon “if he would have a
problem” if Trooper Irvis “looked through” the Durango. Id. at 57. Haymon did not
agree to that, stating it was his girlfriend’s vehicle. Id.
Haymon then said there were “ducks” in the ashtray, which Trooper Irvis
understood to refer to marijuana roaches, but Trooper Irvis acknowledged Haymon
might have said “Dutch,” referring to Dutch cigarillos, rather than “ducks.” Id. at 36, 57-
58. Haymon testified “Dutch” is the brand name of cigarillos he smoked at the time. Tr.
162. Haymon reviewed the video during his testimony and identified a pack of Dutch
cigarillos on the floor of the Durango and near the ashtray. Id. at 166; Body Camera
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Video at 15:59-16:05. Haymon testified he had not smoked marijuana in the Durango at
all that day because his wife did not like the smell of marijuana in a car. 12 Id. at 161-62.
Trooper Irvis testified Haymon’s “whole demeanor changed” when he told him he
was going to search the Durango and Haymon’s palms were “very sweaty” when Trooper
Irvis handcuffed him, which Trooper Irvis attributed to extreme nervousness. Id. at 36.
After handcuffing Haymon, Trooper Irvis took him to the back seat of Sergeant
Denault’s patrol vehicle. Sergeant Denault sat in the patrol vehicle with Haymon.
Haymon had a cell phone with him in the patrol vehicle, answered a call while
handcuffed in the vehicle, but hung up when Sergeant Denault directed him to do so.
(Doc. 321-5, p. 3).
When Trooper Irvis and Sergeant Denault searched the Durango, they found “a
little bit of meth,” a liquid Trooper Irvis believed to be PCP, and over four pounds of
suspected M30 fentanyl pills. Tr. 37. Trooper Irvis’ report does not mention finding any
marijuana, marijuana ash, or marijuana roaches in the Durango. He testified it is not his
practice to collect marijuana ash during a vehicle search and it is not uncommon to
smell the odor of marijuana in a vehicle but not find any marijuana in the vehicle. Id.
at 58-60, 62.
After Trooper Irvis told Sergeant Denault he had found the pills in the Durango,
Trooper Irvis asked Sergeant Denault to take Haymon’s cell phone and put it into
airplane mode. When Sergeant Denault returned to his patrol vehicle to do that, he saw
12 On cross-examination, the prosecutor asked Haymon questions about drug
trafficking, he invoked his Fifth Amendment right to remain silent, and the prosecutor
asked that Haymon’s testimony be stricken. Tr. 172.
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that Haymon was on a Facetime call. Sergeant Denault took Haymon’s cell phone and
gave it to TFO Hinrichs after he arrived at the scene. (Doc. 321-5, p. 3).
After Trooper Irvis sent TFO Hinrichs a photograph of “two bundles of vacuum-
sealed bags that contained large amounts of M30 pills,” TFO Hinrichs went to the
location of the traffic stop. Tr. 109. When he approached the Durango, TFO Hinrichs
saw the pills in the back seat where Trooper Irvis had left them. TFO Hinrichs also
testified that “as soon as [he] approached” the Durango, he smelled the odor of burnt
marijuana coming from the vehicle, an odor he is trained and experienced in
recognizing. Id. at 109-10. As Haymon asserts, TFO Hinrichs’ November 24, 2023
report did not mention him having smelled the odor of burnt marijuana when he
approached the Durango. (See Doc. 335-2). TFO Hinrichs gave Haymon a Miranda
warning, the two “disagreed about everything,” and TFO Hinrichs ended the
conversation. Tr. 113; Squad Car Video at 31:45-36:50. TFO Hinrichs arranged for the
Durango to be towed to the CCDTF headquarters, where he did an inventory search.
Tr. 112.
TFO Hinrichs took possession of the cell phone Haymon had been using and of
another cell phone found in the Durango. Id. at 111-15. He later obtained search
warrants for the phones and testified the phones contained “numerous, numerous
pictures of fentanyl-laced M30 pills and multiple, multiple conversations in regard to
selling narcotics, mainly M30 fentanyl pills.” Id. at 115. In his report, TFO Hinrichs
estimated 19,980 suspected fentanyl-laced M30 pills were seized from the Durango.
(Doc. 335-2, p. 3).
On November 29, 2023, TFO Hinrichs went to FM Auto & Glass, where Haymon
had purchased the Durango. The owner of FM Auto & Glass told TFO Hinrichs that
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Haymon had recently purchased the Durango, paid $11,500 in US currency for the
vehicle, and put the vehicle in Holman’s name. Tr. 113-14.
Law and Discussion
Under the Fourth Amendment, the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated.” U.S. Const. amend. IV. “The touchstone of [any] analysis under the
Fourth Amendment is always ‘the reasonableness in all the circumstances of the
particular governmental invasion of a citizen’s personal security.’” Pennsylvania v.
Mimms, 434 U.S. 106, 108-09 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)).
Evidence obtained as the result of an unreasonable search and seizure may be
excluded from trial. Regarding suppression of evidence, the Supreme Court has held,
The Fourth Amendment protects the “right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” The Amendment says nothing about suppressing evidence
obtained in violation of this command. That rule—the exclusionary rule—is
a “prudential” doctrine, Pennsylvania Board of Probation and Parole v.
Scott, 524 U.S. 357, 363 (1998), created by this Court to “compel respect for
the constitutional guaranty.” Elkins v. United States, 364 U.S. 206, 217
(1960); see Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367
U.S. 643 (1961). Exclusion is “not a personal constitutional right,” nor is it
designed to “redress the injury” occasioned by an unconstitutional search.
Stone v. Powell, 428 U.S. 465, 486 (1976); see United States v. Janis, 428
U.S. 433, 454 n.29 (1976) (exclusionary rule “unsupportable as reparation
or compensatory dispensation to the injured criminal” (internal quotation
marks omitted)). The rule’s sole purpose, we have repeatedly held, is to
deter future Fourth Amendment violations. E.g., Herring v. United States,
555 U.S. 135, 141 and n.2 (2009); United States v. Leon, 468 U.S. 897, 909,
921 n.22 (1984); Elkins, supra, at 217 (“calculated to prevent, not to repair”).
Our cases have thus limited the rule’s operation to situations in which this
purpose is “thought most efficaciously served.” United States v. Calandra,
414 U.S. 338, 348 (1974). Where suppression fails to yield “appreciable
deterrence,” exclusion is “clearly . . . unwarranted.” Janis, supra, at 454.
Davis v. United States, 564 U.S. 229, 236-37 (2011) (internal citations altered).
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1. 	Probable Cause for the Cell Phone GPS Warrant13
Probable cause is required for issuance of a warrant authorizing law enforcement
to obtain cell phone location records. Carpenter v. United States, 585 U.S. 296, 319
(2018); United States v. Thompson, 976 F.3d 815, 823 (8th Cir. 2020). Probable cause
to issue a search warrant for location data exists when, under the totality of the
circumstances, “the supporting affidavit sets forth sufficient facts to lead a prudent
person to believe that ‘there is a fair probability that contraband or evidence of a crime
will be found in a particular place.’” United States. v. Johnson, 64 F.3d 1120, 1126 (8th
Cir. 1995) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)); see also United States v.
Petruk, 929 F.3d 952, 959 (8th Cir. 2019).
Haymon contends the cell phone GPS warrant was not supported by probable
cause because TFO Hinrichs’ declaration included no evidence of a nexus between
Haymon’s cell phone location and controlled substance distribution. (Doc. 315, p. 5;
Doc. 370, p. 6). Haymon argues his cell phone number was mentioned only four times in
TFO Hinrichs’ declaration, including one time it was mentioned as belonging to Dionne,
and none of the references demonstrated a nexus between his cell phone and controlled
substance distribution. (Doc. 315, p. 6; Doc. 370, p.5). The court next considers the
declaration’s four references to Haymon’s cell phone number and Haymon’s arguments
about each of those references.
First, the declaration describes CI-2’s September 25 statement that Haymon and
Dionne traveled to Minneapolis-St. Paul to “obtain large amounts of fentanyl[-]laced
13 This court considered only the declaration in support of the cell phone GPS
application in determining whether probable cause supported issuance of the cell phone
GPS warrant.
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M30 pills, and would return to Fargo . . . to sell the fentanyl[-]laced M30 pills.” (Doc.
315-1, p. 3). CI-2 admitted having recently obtained fentanyl-laced M30 pills from
Haymon and provided Haymon’s 7542 cell phone number. Id. Haymon contends the
declaration “says nothing about [him] using that phone or phone number while making
any trips for narcotics,” does not state he “brought that cell phone with him on any trip
for drugs,” and does not “state how or why the CI knew such a phone number belonged
to Mr. Haymon.” (Doc. 370, pp. 5-6).
Second, the declaration describes TFO Seehusen’s November 7 contact with CI-2,
during which CI-2 confirmed Haymon’s 7542 cell phone number. (Doc. 315-1, p. 7).
Haymon notes “no additional context [was] provided.” (Doc. 370, p. 6).
Third, the declaration stated TFO Cichos had recently arrested an individual for
drug-related crimes, that individual identified Haymon as their fentanyl source, and
through the investigation, TFO Cichos identified Haymon’s 7542 cell phone number.
(Doc. 315-1, p. 6). Haymon states, “No further explanation or information is given, such
as how, when, or in what context TFO [Cichos] identified that number as belonging to
[Haymon].” (Doc. 370, p. 6).
Finally, the declaration described CCD-2’s October 24 statement that they had
witnessed Dionne, “Reese,” and others in possession of large amounts of controlled
substances, those individuals traveled to Minneapolis-St. Paul twice a week to obtain
controlled substances to sell in Fargo, Dionne had recently crashed a white Ford F-150
she had been driving and fled the scene, Dionne left behind two cell phones when she
fled, and Dionne had recently obtained a new cell phone number, which was the 7542
cell phone number. (Doc. 315-1, p. 5). Haymon asserts, “This is contrary to what [CI-2]
said, i.e., that such a phone number belonged to [Haymon].” (Doc. 370, p. 6).
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Haymon asserts law enforcement likely failed to identify any nexus between
Haymon’s cell phone and drug trafficking activity because law enforcement copied a
request it had previously made for a tracking device for the Ford F-150 Haymon had
been driving. According to Haymon, because law enforcement “believed that [he] was no
longer driving the Ford F-150,” which was stated in the declaration in support of the cell
phone GPS warrant application, “law enforcement submitted [a] nearly identical
application for a GPS warrant on Haymon’s cell phone as they had done for the Ford F-
150.” (Doc. 315, p. 7). But, Haymon contends, the supporting declaration included no
statements supporting a nexus between Haymon’s cell phone and any controlled
substance distribution.
The United States argues it can be inferred that individuals carry their cell
phones and CI-2 used Haymon’s cell phone number to obtain controlled substances
from Haymon. (Doc. 321, pp. 4, 21). The United States notes “cell phones are often tools
of the drug trade.” Id. at 21. The United States argues the information CI-2 and others
provided, coupled with other information in the declaration showing Haymon’s drug-
related activities, “provided sufficient probable cause based on the totality of the
circumstances that [Haymon’s] location via Phone GPS monitoring would provide
evidence of felony narcotics trafficking.” Id. at 22.
A warrant authorizing a search must include “evidence of a nexus between the
contraband and the place to be searched.” United States v. Johnson, 848 F.3d 872, 878
(8th Cir. 2017) (citation omitted). In determining whether a sufficient nexus exists,
courts consider “the nature of the crime and the reasonable, logical likelihood of finding
useful evidence.” Id. (citation omitted). A court may draw inferences from an affidavit,
or declaration, in determining whether probable cause supports issuance of a search
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warrant. United States v. Brackett, 846 F.3d 987, 992 (8th Cir. 2017); United States v.
Tellez, 217 F.3d 547, 550 (8th Cir. 2000).
TFO Hinrichs’ declaration in support the cell phone GPS warrant application
demonstrated probable cause to believe Haymon engaged in controlled substance
distribution. For example, CI-1 stated Haymon sold fentanyl-laced M30 pills, apartment
building management described complaints of come-and-go, short term traffic from
Haymon’s apartment and garage, and CI-2 stated Haymon sold fentanyl-laced M30
pills, they had obtained fentanyl-laced M30 pills from Haymon, and they were aware
Haymon had a large quantity of fentanyl-laced M30 pills and powder fentanyl in his
apartment. Additionally, CI-2 made a controlled purchase of fentanyl-laced M30 pills
from Haymon’s associate at Haymon’s apartment. Finally, both CCD-1 and CCD-2
stated Dionne and “Reese” sold narcotics, and CCD-2 saw them in possession of large
quantities of narcotics. (Doc. 315-1, pp. 2-5).
The declaration need only give rise to “an inference that [a suspect] may carry his
phone with him while engaged in suspected criminal activity.” United States v. Gordon-
Greenwood, No. 23-cr-339, 2024 WL 5381464, at *8 (D. Minn. Sept. 30, 2024), report
and recommendation adopted, 2025 WL 33438 (D. Minn. Jan. 6, 2025) (quoting United
States v. Santos-Hunter, Crim. No. 23-310(1), 2024 WL 1928711, at *2 (D. Minn. May 2,
2024)) (emphasis added). Here, CI-2 stated they purchased fentanyl-laced M30 pills
from Haymon and provided Haymon’s cell phone number. And through the
investigation of another individual who stated Haymon was their fentanyl source,
Haymon’s cell phone number was identified. Certainly, an inference can be drawn that
those individuals utilized Haymon’s cell phone number to purchase narcotics or that
Haymon carried his cell phone while engaged in drug-related activities. See United
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23
States v. Eggerson, 999 F.3d 1121, 1127 (8th Cir. 2021) (agreeing with a federal
magistrate judge’s conclusion that “because cell phones are ubiquitous and the primary
means of communication for most people, it was not unreasonable for the state [judge]
to infer that cell phones were being used in connection with the alleged drug dealing”
and stating “it would be unreasonable and impractical to demand that judges evaluating
probable cause must turn a blind eye to the virtual certainty that drug dealers use cell
phones”) (citation modified); United States v. Lopez, No. 24-cr-105, 2024 WL 4682677,
at *17 (D. Minn. Sept. 3, 2024) (“Courts have consistently recognized cellular telephones
as tools of the drug trade.”) (collecting cases). One court aptly noted, when the facts
presented suggest an individual is connected to drug trafficking, their whereabouts are
“undoubtedly relevant to that offense,” and “[c]ourts have recognized the importance of
cell phones in coordinating criminal enterprises, particularly drug trafficking
conspiracies.” United States v. Griffin, No. 2:17-CR-20639-TGB-MKM, 2022 WL
2072042, at *3 (E.D. Mich. June 8, 2022) (collecting cases). Because it can be inferred
that Haymon carried his cell phone when engaged in drug-related activities, the district
judge should conclude probable cause supported issuance of the cell phone GPS
warrant.
If, however, the district judge concludes probable cause did not support issuance
of the cell phone GPS warrant, the United States argues the good-faith exception
precludes suppression of evidence. 14 (Doc. 321, pp. 32-33; Doc. 365, pp. 4-7). Haymon
argues the good faith exception does not apply. (Doc. 360, pp. 8-9).
14 In its post-hearing brief, the United States also asserted the independent
source and attenuation doctrines preclude suppression of evidence. The United States
did not assert those arguments in response to Haymon’s motion to suppress, so
Haymon has not had an opportunity to respond to those arguments. Though Haymon
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The good faith exception applies if an officer obtained evidence in objectively
reasonable, good faith reliance on a search warrant. United States v. Leon, 468 U.S. 897,
922 (1984). The good faith exception does not apply if “a reasonably well[-]trained
officer would have known that the search was illegal despite the issuing judge’s
authorization.” United States v. Watkins, 66 F.4th 1179, 1183 (8th Cir. 2023) (quoting
United States v. Randle, 39 F.4th 533, 536 (8th Cir. 2022)).
Courts recognize four circumstances under which an officer’s reliance on a search
warrant can be found objectively unreasonable:
(1) the affiant misled the issuing judge with a knowing or reckless false
statement; (2) the issuing judge wholly abandoned her judicial role; (3) the
supporting affidavit was so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable; or (4) the warrant was
so facially deficient that the executing officer could not reasonably presume
its validity.
Id. (quoting United States v. Hay, 46 F.4th 746, 751 (8th Cir. 2022)).
Haymon argues application of the third and fourth circumstances, asserting,
“Nothing in the application indicates a nexus between [Haymon’s] alleged drug
distribution and his cell phone number or his cell phone location” and “one CI said the
number belonged to Kelly Dionne and one said it belonged to [Haymon].” (Doc. 370,
filed his post-hearing brief after the United States filed its brief, defense counsel
represented, via email, that his post-hearing brief was completed prior to the due date
and requested an extension because Haymon wished to review the brief before it was
filed. Defense counsel therefore requested additional time to mail the brief to Haymon,
who was confined at Stutsman County Jail, before electronically filing the brief. The
court granted defense counsel’s request. Because Haymon has not had an opportunity to
respond to the United States’ arguments regarding application of the independent
source and attenuation doctrines, this court does not address those arguments. If the
district judge concludes there was not sufficient probable cause supporting the cell
phone GPS warrant, additional briefing on the independent source and attenuation
doctrines might be considered.
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25
p. 9). TFO Hinrichs’ declaration, however, was not so lacking in indica of probable cause
to render official belief in its existence entirely unreasonable.
CI-2 and another individual described purchasing fentanyl from Haymon,
CI-2 identified the 7542 phone number as Haymon’s, and through an investigation
related to the other individual, officers identified Haymon’s 7542 phone number. It
would therefore not be unreasonable to infer Haymon either used his cell phone or
possessed his cell phone during drug-related activities. While CCD-2 stated Dionne used
the 7542 phone number, the declaration described Haymon as having been in a
relationship with Dionne and the two having engaged in drug trafficking together. (See
Doc. 315-1, pp. 2-4). Under these circumstances, law enforcement officers’ reliance on
the cell phone GPS warrant was reasonable. If the district judge concludes probable
cause did not support issuance of the cell phone GPS warrant, the district judge should
conclude the good-faith exception precludes suppression of the evidence obtained
through that warrant.
2. 	Probable Cause for the Durango GPS15
Probable cause is required for issuance of a warrant authorizing law
enforcement’s installation of a GPS tracking device on a vehicle. United States v.
Faulkner, 826 F.3d 1139, 1144 (8th Cir. 2016) (citing United States v. Jones, 565 U.S.
400, 404 (2012)). Whether probable has been established involves a “practical,
common-sense decision,” under the totality of the circumstances set forth in the
15 This court considered only the declaration in support of the Durango GPS
application in determining whether probable cause supported issuance of the Durango
GPS warrant.
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26
declaration, that “there is a fair probability that contraband or evidence of a crime will
be found in a particular place.” Gates, 462 U.S. at 238.
Haymon contends the declaration in support of the Durango GPS warrant
application “mirrors nearly word-for-word” the declaration in support of the cell phone
GPS application and the declaration in support of application for the tracking device for
the Ford F-150. (Doc. 315, p. 8). He also described the short time period between the
applications. He states, “All three warrant applications . . . focus for the most part on
Haymon’s use of the Ford F-150 in connection with his alleged drug distribution
activity.” (Doc. 370, p. 10). While that is true, the declaration in support of the Durango
GPS warrant application also included information derived from use of the cell phone
GPS warrant and from other sources. Haymon contends that if the cell phone GPS
warrant is invalid, then information derived from its use should not be considered.
(Doc. 315, pp. 8-9). But, as discussed above, this court recommends the district judge
conclude probable cause supported issuance of the cell phone GPS warrant.
Haymon also argues certain facts included in the declaration “do not support the
issuance of the Durango GPS warrant.” (Doc. 370, p. 10). The court considers the facts
Haymon asserts undermine probable cause for issuance of the Durango GPS warrant.
First, Haymon points to the declaration’s statement, “Your Declarant does not
believe Maurice Haymon will be driving the Ford F-150 to obtain the narcotics and will
be traveling in a different and unknown vehicle.” (Doc. 215-3, p. 7). Haymon questions,
“How can you claim you are entitled to a GPS monitor of a specific vehicle (i.e., the
Durango) when you swear under oath that you do not know which vehicle is being
utilized?” (Doc. 370, p. 10). As Haymon contends, the declaration in support of the
Durango GPS warrant application largely copied the declaration in support of the cell
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27
phone GPS warrant application, including the statement to which Haymon refers. But
TFO Hinrichs also included information obtained from use of the cell phone GPS and
from other sources connecting Haymon to the Durango. While inartfully drafted, the
statement Haymon cites does not undermine probable cause; rather, it was a historical
statement based on the information TFO Hinrichs knew at the time he applied for the
cell phone GPS warrant.
Second, Haymon notes the declaration’s statement, “During the investigation,
Your Declarant learned that Maurice Haymon was recently stopped by the North Dakota
Highway Patrol in a Dodge Durango with no license plates.” (Doc. 315-3, p. 7). Haymon
states, “No date is given. No specifics are given which suggest drug trafficking was being
done.” (Doc. 370, p. 10). While the date of the traffic stop was not included, the
declaration included ample information suggesting Haymon engaged in drug trafficking,
and the traffic stop connected Haymon to the Durango. Additional information in the
declaration also connected Haymon to the Durango. (See Doc. 315-3, p. 8).
Third, Haymon notes the Durango was observed in Holman’s parking lot at 3:45
a.m. on November 8, 2023, and further notes TFO Hinrich’s conclusion that because
there was no dew on the windows, the Durango must have recently been driven.
Haymon states, “No reference is provided as to who might have been driving it or where
it had been.” (Doc. 370, p. 11). The declaration stated the cell phone GPS warrant
showed the cell phone had left Minneapolis-St. Paul on November 7, 2023, at 11:06 p.m.
and was in the area of Holman’s parking lot when the Durango was observed in that lot.
Regardless, the declaration included other facts connecting Haymon to the Durango—
the November 7 traffic stop and TFO Hinrichs’ observation of Haymon driving the
Durango the afternoon of November 8. (Doc. 315-3, pp. 7-8).
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Finally, Haymon recognizes he was observed driving the Durango on November 8
but states nothing indicates where he went at that time. He argues, “In sum, the
Durango GPS Search Warrant must be suppressed because, like the phone GPS, there is
no nexus stated in [the declaration] that the Durango was being used to traffic illegal
drugs.” (Doc. 370, p. 11). The declaration included facts demonstrating probable cause
that Haymon engaged in drug trafficking activities, that he traveled to Minneapolis-St.
Paul to engage those activities, and that he drove the Durango. Certainly, an inference
can be drawn that Haymon used the Durango to travel for the purpose of engaging in
drug-related activities. Considering the totality of the circumstances, the district judge
should conclude probable cause supported issuance of the Durango GPS warrant.
3. 	Probable Cause for the Vehicle Search
Haymon argues probable cause did not support the search of the Durango
because Trooper Irvis’ and TFO Hinrichs’ testimony lacked credibility, officers did not
include having smelled an odor of marijuana in their reports, and no marijuana was
found during the search. (Doc. 370, pp. 12-13). The United States argues Trooper Irvis
having smelled an odor of marijuana in the Durango provided probable cause for the
search under the automobile exception. (Doc. 365, p. 4).
“Probable cause to believe that an automobile contains contraband or evidence of
criminal activity has long been held to justify a warrantless search of the automobile and
seizure of the contraband.” United States v. Shackleford, 830 F.3d 751, 753 (8th Cir.
2016) (citations omitted). “Under the automobile exception to the Fourth Amendment’s
warrant requirement, an officer may search a vehicle without a warrant if, ‘given the
totality of the circumstances, a reasonable person could believe that there is a fair
probability that contraband or evidence of a crime would be found in a particular
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place.’” United States v. Virrueta, 121 F.4th 706, 710 (8th Cir. 2024) (quoting United
States v. Rodriguez, 414 F.3d 837, 843 (8th Cir. 2005)). The Eighth Circuit has
“repeatedly held that the odor of marijuana emanating from a vehicle during a traffic
stop also gives the officer probable cause to search the vehicle.” Id.; see also United
States v. Simpson, No. 4:20-CR-00145-1, 2022 WL 5027467, at *7 (W.D. Mo. Oct. 4,
2022) (finding probable cause existed under the automobile exception after the officer
testified he observed marijuana shake and smelled marijuana emanating from the
vehicle where the defendant was the sole occupant).
The Eighth Circuit has held,
Credibility assessments are “the providence of the trial court.” As
such, the “decision to credit a witness’s testimony over that of another can
almost never be a clear error unless there is extrinsic evidence that
contradicts the witness’s story or the story is so internally inconsistent or
implausible on its face that a reasonable fact-finder would not credit it.”
United States v. Harper, 787 F.3d 910, 914 (8th Cir. 2015) (citations omitted); see also
United States v. Thin Elk, 148 F.4th 595, 601 (8th Cir. 2025).
At the August 13 hearing, Trooper Irvis testified, based on his experience and
training, that when he approached the Durango, he “immediately was met with the odor
of burnt marijuana” and Haymon was the sole occupant of the Durango. Tr. 16, 27-28,
108. Trooper Irvis also testified that after he confronted Haymon about the marijuana
odor, Haymon “made a comment about [Trooper Irvis seeing] ducks in the ashtray,”
which Trooper Irvis believed to refer to marijuana “roaches” or the burnt ends of a
marijuana blunt.16 Id. at 36. Trooper Irvis also explained that after he confronted
Haymon, he observed Haymon’s palms were very sweaty, which he believed was
16 At the hearing, Haymon testified that he did not say “ducks” but instead said
“Dutch,” referring to the brand of cigarillos in the Durango’s ashtray. Tr. 162-63.
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indicative of extreme nervousness. Id. Based on his training and experience, Trooper
Irvis believed the vehicle contained evidence of criminal activity. TFO Hinrichs also
testified he smelled an odor of marijuana emitting from the Durango but the search
revealed no marijuana roaches or ash. Id. at 137, 144.
Although neither Trooper Irvis’ nor TFO Hinrichs’ reports included that they had
smelled marijuana coming from the Durango, their reports do not negate that probable
cause existed to search the Durango. The Eighth Circuit has repeatedly held the search
of an automobile may be justified “when a reasonable person could believe that there is
a fair probability” of finding contraband or evidence in the vehicle, not that officers must
be absolutely certain of or actually discover contraband. Virrueta, 121 F.4th at 710
(emphasis added); see also United States v. Beard, 708 F.3d 1062, 1066 (8th Cir. 2013)
(concluding the vehicle search was lawful under the automobile exception when the
trooper smelled marijuana immediately after the defendant rolled down the car
window); United States v. Green, No. 24-12642, 2025 WL 1911522, at *4 (11th Cir. July
11, 2025) (affirming the district court’s denial of a suppression motion, noting the
officer’s “failure to mention the smell of marijuana in his police report [was] irrelevant
because his body camera video confirm[ed] that, prior to the search, he stated that he
smelled marijuana emanating from [the defendant’s] car”). Here, Trooper Irvis’
testimony about smelling marijuana was corroborated by TFO Hinrichs’ testimony that
he also smelled burnt marijuana emanating from the Durango. Tr. 110.
Following post-hearing briefing, Haymon filed a supplemental brief along with a
May 20, 2025 Eastern District of Wisconsin order granting a motion to suppress. (See
Doc. 373; Doc. 373-1). Haymon argues the facts of that case, United States v. Bradshaw,
No. 24-CR-240, 2025 WL 1445587 (E.D. Wis. May 20, 2025), are analogous to those of
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this case. In Bradshaw, the court found inconsistencies between an officer’s report and
his body camera video and with other officers’ reports regarding the smell of marijuana:
the body camera video showed the officer did not confront the defendant about the
smell of marijuana but in his report he stated he had done so, the officer stated the
defendant admitted to having marijuana or THC cartridges in the vehicle but the
admission was not observed in the body camera video, the officer admitted having
prolonged the stop, and none of the other officers who arrived on the scene reported
smelling marijuana. 2025 WL 1445587, at *5. Although both sides acknowledged the
officer having smelled marijuana would have provided probable cause to search the
vehicle, the inconsistencies led the court to conclude the United States had not met its
burden of proof. Id. at *4, 6. Here, no video contradicts Trooper Irvis’ statements. And
TFO Hinrichs’ testimony corroborated Trooper Irvis’ report of having smelled
marijuana upon approaching Durango. Tr. 110.
This court finds no reason to conclude either Trooper Irvis’ or TFO Hinrichs’
testimony was not credible. Because officers smelled marijuana upon approaching the
Durango, the district court judge should conclude probable cause supported search of
the Durango under the automobile exception to the Fourth Amendment warrant
requirement.
4. 	Striking Haymon’s Testimony
At the August 13 hearing and in its post-hearing brief, the United States asserted
Haymon’s testimony should be stricken in its entirety because he did not respond to all
questions on cross-examination. The United States argues the questions asked of
Haymon on cross examination “went directly to Haymon’s credibility to demonstrate his
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ongoing dishonesty” and because he asserted his Fifth Amendment privilege against
self-incrimination, his testimony could not be tested for its truth. (Doc. 365, pp. 13-14).
“Where a defense witness refuses to answer questions that go to the heart of the
direct testimony on a central issue, . . . the truth-seeking function of the court is
impaired.” Denham v. Deeds, 954 F.2d 1501-04 (9th Cir. 1992). A defense witness’
testimony may be stricken when the witness refuses to respond to questions on non-
collateral matters on cross examination. Id. (emphasis added); see also United States v.
Henry, 472 F. Supp. 2d 649, 657-58 (E.D. Pa. 2007). Testimony about a witness’s
credibility is generally considered a collateral matter. United States v. Brierly, 501 F.2d
1024, 1027 (8th Cir. 1974). In other words, if a defendant voluntarily testifies, he waives
the Fifth Amendment privilege as to matters within the scope of his direct testimony
and cannot invoke it to avoid cross-examination on those matters. If he does so, the
court may strike all or part of his testimony, though the privilege remains for truly
collateral matters. See Simons v. United States, 390 U.S. 377, 394 (1968).
On cross-examination, Haymon was asked about his criminal history and veracity
with law enforcement. Through his counsel, Haymon asserted his Fifth Amendment
right against self-incrimination. Tr. 171-76. The questions went towards Haymon’s
credibility, likely with the intent to impeach him. 17 Id. Because the questions on cross-
17 For example, when the United States asked about the November 3 traffic stop,
the following exchange occurred:
Q: You had cocaine in the vehicle?
A: Yes, I did.
Q: But you lied to the law enforcement officer and said there’s no cocaine in
that vehicle?
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examination went to Haymon’s credibility, the Fifth Amendment privilege still applies,
and his testimony need not be stricken. For this reason, the district judge should deny
the United States’ request that Haymon’s testimony at the August 13 hearing be stricken
from the record.
If the district judge finds the questions posed to Haymon on cross-examination
are non-collateral matters, in this court’s opinion, Haymon’s testimony at the August 13
hearing has no impact on the motion at issue. See United States v. Kikumura, 698 F.
Supp. 546, 553-54 (D.N.J. 1988) (denying a motion to strike the defendant’s testimony
at the suppression hearing because the testimony was “not directly relevant to the focus
of the suppression hearing”). On cross-examination, Haymon was asked about his
criminal history and veracity towards law enforcement prior to search of the Durango,
which has no impact on whether probable cause supported the search.
Recommendation
Because probable cause supported issuance of the cell phone and Durango GPS
warrants and supported the November 24, 2023 search of the Durango, this court
recommends the motion to suppress evidence seized during the Durango search, (Doc.
315), be denied.
Dated this 19th day of December, 2025.
/s/ Alice R. Senechal
Alice R. Senechal
United States Magistrate Judge
Tr. 175. At that point, Haymon’s counsel objected and advised Haymon not to
answer. Id.
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NOTICE OF RIGHT TO OBJECT18
Any party may object to this Report and Recommendation a by filing with the
Clerk of Court no later than January 5, 2026, a pleading specifically identifying those
portions of the Report and Recommendation to which objection is made and the basis of
any objection. Failure to object or to comply with this procedure may forfeit the right to
seek review in the Court of Appeals.
18 See Fed. R. Crim. P. 59; D.N.D. Crim. L.R. 59.1(D)(3).
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